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Fragassi v. Brown

United States District Court, Ninth Circuit

December 10, 2013

Mario William Fragassi, Plaintiff
v.
Unknown Brown, et al., Defendants.

REPORT & RECOMMENDATION

JAMES F. METCALF, Magistrate Judge.

Failure to Timely Serve - In its Order filed November 19, 2013 (Doc. 10), the Court ordered Plaintiff to file a memorandum showing cause why this case should not be dismissed without prejudice for failure to effect service.

Plaintiff's Complaint (Doc. 1) was filed on May 31, 2013. The Court's service Order (Doc. 7) was entered on August 28, 2013. A review of the Court's file reflects that service was returned unexecuted on September 11, 2013, with the notation that Director Brown was deceased. (Doc. 9.) It appears to the undersigned that the two defendants, Mohave County Jail Director Brown, and Deputy Director Jeffery Brown, are the same person.

Plaintiff has not responded to the order or otherwise shown cause why this case should not be dismissed for failure to effect service.

Federal Rule of Civil Procedure 4(m) provides:

If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Local Civil Rule 16.2(b)(2)(B), which governs prisoner civil rights suits, provides that service shall be completed by the "maximum date to effect service, pursuant to Rule 4 of the Federal Rules of Civil Procedure, or sixty (60) days from filing of service order, whichever is later."

Dismissal of a party is appropriate where a plaintiff fails to show good cause for delays in service. See Walker v. Sumner, 14 F.3d 1415 (9th Cir. 1994) (upholding dismissal where no showing of good cause for delay in service).

At a minimum, "good cause" means excusable neglect. A plaintiff may also be required to show the following: (a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.

Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991).

Notwithstanding Rule 4(m), where "good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service." Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3rd Cir. 1995). "[I]f good cause is not established, the district court may extend time for service upon a showing of excusable neglect." Lemoge v. U.S., 587 F.3d 1188, 1198 (9th Cir. 2009).

To determine whether a plaintiff demonstrates excusable neglect, courts use the test set forth in Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 394 (1993), and Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997). See Lemoge, 587 F.3d at 1198 (holding that plaintiff had established excusable neglect for the purposes of Rule 4(m) via the Pioneer-Briones test). The Pioneer-Briones test is as follows:

[T]he determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings, (3) the reason ...

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